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Full text of "O'Brien v. Ontario Hydro, Board of Inquiry, June 1981 BOI 136"

ONTARIO 

MINISTRY OF LABOUR 

JUN 2 9 1981 

HUMAN RiGH.'S 
COMMISSION 

THE ONTARIO HUMAN RIGHTS CODE 
R.S.O. 1970, c. 318, as amended 



IN THE MATTER OF: the Complaint of Mr. Ronald O'Brien of 

Toronto, Ontario, that he was discriminated 
against by reason of refusal to employ because 
of his age, by Ontario Hydro, contrary to 
paragraph 4(1) (b) of the Ontario Human Rights 
Code, as amended. 



APPEARANCES: Messrs. Steven J. McCormack and Brock Myles, 

Counsel for the Ontario Human Rights Commission 
and Mr. Ronald O'Brien. 

Mr. Bruce H. Stewart, Q.C., Counsel for 
Ontario Hydro. 



A HEARING BEFORE: Peter A. Cumming , a 3oard of Inquiry in the 

above matter appo i nted by the Minister of 
Labour, the Honourable Robert Elgie, June 4, I960, 
To hear and decide the Complaint. 



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DECISION AND ORDER 

Introduction 

This Board of Inquiry (Exhibit No. 1) involved the consideration of 
a (Complaint (Exhibit No. 2) by Ronald O'Brien of Toronto, in which he 
alleges discrimination by Ontario Hydro. Specifically, Mr. O'Brien 
alleges he was discriminated against contrary to Section 4 (1) (b) of the 
Ontario Human Rights Code , 1970, R.S.O., c. 318 (hereinafter referred to 
as the "Code") , which reads: 

s.4-(l) No person shall, 

(b) dismiss or refuse to employ or to continue to employ 
any person; 

• • • 

because of . . . age of such person or employee. 

As well, Section 4 (6) of the Code should be noted: 

(6) The provisions of this section relating to any discrimination, 
. limitation, specification or preference for a position or 
employment based on age do not apply where age is a bona 
fide occupational qualification and requirement for the 
position for eiiployment. 1374, c. 73, s. 2. 

Mr. O'Brien alleges that Hydro refused to hire him as an apprentice 

electrician because of his age, he being 40 at the time of his seeking 

employment. 

I shall review the applicable law to the topic of age discrimination 
and then the evidence. 

The Law Concerning Discrirrination on the Basis of Age 
The Statutes 

All of the Canadian provinces, as well as the federal government, have 
now enacted, under various titles, statutes which aim at the protection of 
human rights within each of those respective jurisdictions. The type of 
protection provided under these statutes varies somewhat with each enacting 
legislature. As such, the protection from discrimination on the basis of 
age receives some diversity of treatment across Canade. For example, "age" 
may be included as one of the grounds of proscribed discximiriation along with 



I 



various combinations of race, colour, sex, religion, marital status, 
ancestry, political belief, place of origin, etc., as in the British 
Columbia Human Rights Code R.S.B.C. 1979, C. 186, s. 8. Conversely, "age" 
may be treated separately, (as in the Newfoundland Human Rights Code 
R.S.N. 1970, C. 262 as am. by 1974 S.N. 114, s. 9(1) (b)), or along with 
"Physical handicap", (in the P.E.I. Human Rights Act , S.P.E.I. 1975, c. 72 
11(1)). Queb ec's approach is distinctive in that it makes no specific 
reference to any proscribed grounds of discrimination, reference being made 
to "discrimination" in the generality, (s. 16). 

For the most part, though, the structure of the various provisions 
dealing with age discrimination in all eleven Canadian statutes is rather 
similar. "Age" is on the one hand, a specifically prohibited ground of 
discrimination, (except in the case of Quebec, as noted above), yet, on 
the other hand, may be a permissible ground of discrimination under certain 
circumstances. Discrimination on the basis of age in employment circumstances 
is permitted, in general, where a reasonable, or bona fide occupational 
qualification requires that an arbitrary distinction is made between employees, 
or applicants for employment. Such an exception clause is present in the 
federal, and in all of the provincial human rights statutes (except that of 
Nova Scotia: Human Rights Act , C.S.N.S. 1979, c. H-24) . 

Another exception to the proscription against discrimination on the 
basis of age, is where bona fide retirement, pension, or insurance plans 
make a distinction on the basis of age between persons covered by them. The 
following subsection of the B.C. Human Rights Code is typical of the exception 



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clauses found in other codes: 

s. 9(3) Nothing in this section relating to age prohibits the 
operation of a term of a bona fide retirement, 
superannuation or pension plan, or the terms of 
conditions of a bona fide group or employee insurance 
plan, or of a bona fide scheme based on seniority. 

Thus, the regime for dealing with age discrimination in Canada is 
rather consistent across the provinces. The prohibition against age discrim- 
ination is, in general, coupled with exceptions where a bona fide occupational 
qualification exists, or a bona fide retirement or pension plan has been 
established. Ontario, while specifically referring to many conditions of 
employment in which discrimination is proscribed, has structured its provisions 
in the Ontario Human Rights Code , R.S.O. 1970, c. 318 as am., as follows: 



s. 4.-(l) No person shall, 

(b) dismiss or refuse to employ or to continue to employ 
any person; 

(g) discriminate against any employee with regard to 
any term or condition of employment, 

because of age of such person or employee. 



(6) The provisions of this section relating to any discrimination, 
limitation, specification or preference for a position 
or employment based on age ... do not apply where age ... is 
a bona fide occupational qualification and requirement 
for the oosition of employment. 



(9) Clause (g) of subsection 1 does not apply to any bona fide 
superannuation or pension fund or plan or any bona fide 
insurance plan that provides life, income, disability, 
sickness, medical or hospital payments or benefits of a 
monetary kind to which an employee, his survivors or 
dependants are or may be entitled that differentiates or 
makes a distinction, exclusion or preference between 
employees or any class or classes of employees because of 
age./. (R.S.O. 1970, c. 318, as am. by* 1974, c. 73, s.2) . 



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The United States has enacted a federal statute specifically aimed 
at the prohibition of discrimination on the basis of age: The Age Discrim- 
ination in Employment Act of 1967 , 29 U.S.C.A. s. 621 et seq. The structure 
of its provisions dealing with age discrimination in conditions of employment 
and the coincident exceptions, parallels that of the Canadian statutes. It 
provides that: 



s. 623 (a) It shall be unlawful for an employer - 

(1) to fail or refuse to hire or to discharge any individual 
or otherwise discriminate against any individual with respect 
to his compensation, terms, conditions, or privileges of employ- 
ment, because of such individual's age; 



(f) It shall not be unlawful for an employer, employment agency, 
or labor organization - 

(1) to take any action otherwise prohibited under subsections (a) , 
(b) , (c) , or (e) of this section where age is a bona fide 
occupational qualification reasonably necessary to the normal 
operation of the particular business, or where the differentiation 
is based on reasonable factors other than age; 

(2) to observe the terms of a bona fide employee benefit plan 
such as a retirement, pension, or insurance plan, which is not 
a subterfuge to evade the purposes of this chapter, except 
that no such employee benefit plan shall excuse the failure 

to hire any individual; or 

(3) to discharge or otherwise discipline an individual for good 
cause . 



In the United Kingdom, there exists no general statute that deals 
with human rights. Traditionally, Bills of Rights have been thought to offend 
the principle of parliamentary supremacy, being perceived as fostering a 
measure of judicial activism to render validly enacted legislation inoperative. 
Britain has enacted statutes, however, which offer protection from discrimination 
on the basis of race and sex. (The Pace Relations Act, 1976, c. 74: 



5. 



The Sex Discrimination Act , 1975, c. 65) . No such statute prohibits age 
discrimination . 

Some protection is provided to employees under the Trade Union and 
Labour Relations Act 1974 c. 52, where an employee may bring an action 
against an employer for wrongful dismissal, if the dismissal is not justified 
as being related to the work, to the employee's conduct, to employee redund- 
ancy, or any other substantial reason (Schedule 1, Part II, s. 6). An 
employee may not bring an action though, once he or she has reached "normal 
retirement age", ( Nelson and Woolett v. Post Office [1978] IRLR 548). There 
appear to be no cases involving wrongful dismissal when the reason was the 
employee's age. 

Other rights are now guaranteed in Britain by virtue of her ratification 
of the European Convention on Human Rights . According to the Convention, 
the European Commission may hear individual petitions from citizens of 
signatory states with respect to violations of human rights in their home 
state. However, the Convention seeks to guarantee legal and political rights 
on a non-discriminatory basis, not non-discrimination rights as they pertain 
to the provision of services or conditions of employment. Further, "age" is 
not a ground of discrimination recognized in the Convention as giving rise to 
a complaint. 

Having examined the structures of the various statutes which offer 
recourse to victims of discrimination on the basis of age, it remains to 
outline the definitions of "age" used in those statutes. Obviously, the 
manner in which age is defined will be an indication of the policy consider- 
ations which are thought to be desirable by the enacting legislature. In 



6. 

discussing the Ontario Human Rights Code with respect to age discrimination, 
the Board of Inquiry in Hall v. IAFF and Etobicoke Fire Dept. July 21, 1977, 
stated as follows: 

"One of the objectives of the Code is to ensure that people in 
the age range forty to sixty-four, who in the past often have 
been discriminated against in respect of employment opportunities, 
are not prevented from working simply because they are believed to 
be too old. If they are to be prevented from filling available 
jobs it must be because they have shortcomings apart from age." 
(at p. 5). 

In defining "age" in s. 19(a) of the Ontario Human Rights Code 
(RSO. 1970, 1. 318, as am. by 1972, c. 119) as "any age of forty years or 
more and less than sixty-five years", the intent was to protect employees 
in that particularly vulnerable age group from being denied employment 
opportunities or being arbitrarily dismissed. 

Other codes with similar definitions of "age", and so presumably the 
same objectives, are: Alberta, I ndividual Rights Protection Act S.A. 1972, 
c.2, s. 28(a), (45 to 65 years); Nova Scotia, Human Rights Act C.S.N.S. 1979, 
H-24, s. 11B(1), (40 to 65 years); British Columbia, Human Rights Code R.S.B.C. 
1979, c. 186, s. 1, (45 to 65 years). The definition in the B.C. Code, though, 
was previously deemed not to be exhaustive, since it had stated that the 
definition was to apply ..."unless the context otherwise requires..." (S.B.C. 
1973 (2nd session) c. 119, s. 1). The Code was held to apply where there was 
discrimination against a 31-year-old complainant: Burns v. Piping Industry 
Apprentice Board , (Apr. 1977.) [The Code is now amended to the extent that 
the clause "unless the context otherwise requires" has been removed.] 



7. 

Other statutes define "age" more broadly. Presumably the intention 
was to create a sweeping ground of discrimination, rather than to 
protect a particularly disadvantaged age bracket. Those statutes 
define "age as follows: Newfoundland, Human Rights Code R.S.N. 1970, 
c. 262, s. 9 (l)(b), (19 to 65 years.); Prince Edward Island, Human 
Rights Act s.P.E. I . 1975, c. 72, s. II ( I ) (a) , ( 1 8 to 65 years) ; 
Saskatchewan, Saskatchewan Human Rights Code s.s. 1979, C.S-24-1, 
s. 2 (a), (18 to 65 years). The New Brunswick Human Rights Act 
R.S.N.B. 1973, c. H- II 15.2, as am, defines "age" as over 19 years, 
but has no upper limit. Both the Quebec Charter of Human Rights and 
Freedoms R.S.Q. 1977, C-12, and the Manitoba Human Rights Act S.M. 
1974, C. 65 have no definition of age at all. It is interesting to 
note that both the Manitoba and New Brunswick Acts have been used to 
find discrimination on the basis of age where an employee was forced 
to retire at age 65: Peter Serksen v. Fiver lnaustr : es Lrd . 

(June 2, 1977); Cha r i es L i tt I e v . St. John Shipbuilding and Drvdock , Jan. 15/30) 



8. 



The Canadian Human Rights Act R.S.C. 1976-77 c. 33 does not define "age" 
specifically, hut in s . 14 provides that: 

s . 14 It is not a discriminatory practice if 

(c) an individual's employment is terminated because that 
individual has reached the normal age of retirement 
for employees -working in positions similar to the 
position of that individual;! 



In the United States, The Age Discrimination in Employment Act , 29 
U.S.C.A. s. 621 et seq.,s. 631 defines "age" as "at least forty years of 
age, but less than sixty-five years of age". As will be seen below in the 
cases, the purpose of the U.S. statute was to provide protection for persons 
in that age group. 

Aside from the fact that the various Acts aim at different age groups 



1. In Edward White v. Minister of Public Works Canada (July 9, 1980), 
the complainant alleged discrimination on the basis of age contrary 
to s. 7(b) of the Canadian Human Rights Act , S.C. 1976-77, c. 33. 
Mr. White was retired at age 65 after a little more than three years 
employment in the ministry. It was his contention that mandatory 
retirement age ought to be treated • the same as a lay-off such that 
he would be entitled to severance pay. 

Under the Collective Agreement in force, laid-off employees were 
entitled to severance pay, as were employees that qualified for 
a pension. To be qualified for a pension, an employee had to have 
completed at least five years of pensionable service. Thus, Mr. 
White was not entitled to severance pay since he was retired, not 
laid-off, and had only completed just over three years of 
pensionable service. 

Mr. William Tetley Q.C., Chairman of the Tribunal, dismissed the 
claim. He stated that the complainant had not been discriminated 
against on the basis of age, since the retirement itself was not 
discriminatory (s. 14(b) and (c) of the Act), and lack of entitle- 
ment for severance pay was a question not of age, but of length 
of service. 



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in their prohibition of age discrimination, the fact remains that both 
the Canadian and U.S. statutes structure their provisions in a similar fashion. 
As would be expected then, the cases which turn on the interpretation of those 
provisions can be classified into two groups: 

(1) those that deal with findings of age discrimination; 

(2) those that decide whether a bona fide occupational qualification, 
or retirement or pension plan exists. 

The cases will be divided into these two groups for the purpose of outlining 
the Canadian and U.S. case law. 

The Cases 

Findings of Discriminatio n 

In arriving at a determination of whether or not discrimination on 
the basis of age has taken place, a Board of Inquiry must make a finding of 
fact as to whether the age of a complainant formed the basis of a respondent's 
decision to deny services or refuse employment to the complainant. A difficult 
arises when there exists more than one reason for refusal to employ, or for 
dismissing a complainant. Must the age of the complainant be the sole reason, 
or need it merely be one of the reasons? 

When the only reason for dismissing an employee is his or her age, 
then the procedure of a Board of Inquiry is quite straightforward. For example 
in the case of a lathe operator with a satisfactory work record, who was dis- 
missed when he turned 65, the Board of Adjudication found that the: 

"only reason that Mr. Derkson was retired from his employment ... 
was that he had reached the age of 65." Peter Derkson v. Fiver 
Industries Ltd. June, 1977, (Manitoba), p. 35. 



10. 



Since in the Manitoba Human Rights Act there is no upper age limit 
for consideration of age discrimination, the Board (Professor Jack R. London) 
found that indeed the respondent had discriminated against the complainant 
within the provisions of the Act. Having so found: 

"The onus then shifts ... to the employer to demonstrate, if it 
can, that there has been no contravention of the Human Rights 
Act because of one of the exceptional defences provided in the 
Act." (p. 37). 

A similar finding was made in a B.C. case ( Burns v. Piping Industry 
Apprenticeship Board , April, 1977), where an applicant was turned down for 
training as an apprentice plumber. The applicant was 31 years old, whereas 
the standards of the P.I.A.B. required that applicants be between the ages 
of 18 and 25. After weighing the validity of other possible grounds for not 
considering the application of Burns, the Board of Inquiry stated: 

"...CWJe nave come to the conclusion that the predominant reason 
for the denial to the complainant of his application to be 
registered with the P.I.A.B. was that he was not between the 
ages of 13 and 25 as required in the standards ..." (p. 6). 



1. Having found that the complainant was discriminated against on the 
basis of age, the Board denied the claim on other grounds; affirmed 
on appeal to B.C. Supreme Court: {1978] 2 WWR. 22. 



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11. 

Thus, Boards have encountered no difficulty when age is the "only" 

2 

or the "predominant" ground for distinguishing complainants, but the 
problem is compounded when other possible grounds are also present. 

In the case of Britnell v. Brent Personnel (june 1968, Ontario), a 
woman was found to have been denied employment as an executive secretary 
because she was not as young as the employer would have liked. There, in 
filtering through the various reasons given by the respondent for not consider- 
ing the complainant's application, Professor W.S. Tarnopolsky found that the 
"correct reason" for the denial was the complainant's age (p. 11). He goes 
on at p. 15: 

..."[T]he Act [Age Discrimination Act R.S.O. 1970, c. 7], in any 
case, makes my determination easier because it does not include 
any qualifications on the prohibition of discrimination because of 
age. Section 5(1) does not say 'solely because of age', nor 'age 
exclusively'. The term 'age' is qualified only in section 1(a) as 
being ' anv age of fortv years or more and less than sixty-five 
years \"3 



Conversely, when "age" is not truly a ground for dismissal, as 
determined by the evidence, then there is not, of course, discrimination 
under human rights legislation. An example is the recent Ontario case, 
Mary Peterson and Grace Carter v. Canadian Rubber Dealers (November 19, 
1980) . The Complainants alleged that they had been dismissed because of 
their ages. Mrs. Peterson did not pursue her claim at the hearing. 

The Board of Inquiry (Professor Ian Hunter) found that the respondents 
had not dismissed Mrs. Carter as a waitress because of her age. Indeed, 
she had only recently been hired, with the respondent's knowledge that she 
was 52 years old. The Board stated that technically the complainant 
had not been "dismissed" contrary to s. 4(1) (b) of the Ontario Human 
Rights Code since she had been offered alternative employment in the 
company and had turned the offer down. Further the Board found that age 
was not a consideration in the action that the respondents took with 
respect to Mrs. Carter. Rather, she was treated as she was because of the 
complaints of customers about her arguments with Mrs. Peterson, and the 
speed at which she carried out her waitressing duties. 



3. The Age Discrimination Act has now been repealed, being incorporated into 
the Ontario Human Riehts Code 1972, c. 119, s. 15]. 



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12. 

Professor Tarnopolsky ' s interpretation would seem to indicate that any 
finding that "age" figured in the treatment of a complainant would give rise to 
a valid claim of discrimination. Although this decision has not explicitly- 
been followed, some recent decisions have adopted a similar approach. 

In a B.C. case, a 56 year old woman was dismissed from a graphic arts 
course given by the Vancouver Vocational Institute. ( Carol Jov Felstad Wilson 
v. Vancouver Vocational Institute , (June 4, 1976)). The woman had completed 
the first two sections of the course and was denied the chance to go on. The 
reasons for the denial given by the V.V.I, included: lack of practical skill; 
other students had complained about Ms. Wilson's behaviour in the classroom; 
and that she was a safety hazard. The Board of Inquiry found that the com- 
plainant was not given an adequate opportunity to become proficient in the 
skills required, and as such, the reasons for her termination did not amount 
to reasonable cause under s. 3(1) of the B.C. Human Rights Code . The Board, 
per Carolyn Gibbons stated: 

"Where there is a denial of such a service or facility and the 
reasons advanced are unsubstantial, an inference may be drawn 
when the elements of age and sex are present, that discrimin- 
ation has occurred." (p. 4) 

And further: 

"Where an assessment is subjective and elements like age or sex 
play some part, a prima facie case is established where as a 
result of that assessment there has been a denial of a service 
or facility." (p. 4). 

Here, the board merely required that the factor of age (or sex) "played 
some part" in the denial of services to the complainant, for the claim to be 
v alid. It must be noted though that the decision of the Board was not clear 



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13. 



as to whether or not "age" or "sex" was the ground on which the complainant 
was discriminated against. It was considering s. 3(1) of the B.C. Code 
which provides: 

s. 3(1) No person shall 

(a) deny to any person or class of persons any accommodation, 
service or facility customarily available to the public, 
or 

(b) discriminate against any person or class of persons with 
respect to any accommodation, service, or facility 
customarily available to the public, 

unless reasonable cause exists for such denial or 
discrimination. 



Having determined that the causes advanced by the V.V.I, were not 
reasonable, the Board did not proceed to decide what the causes actually 
were. 



In a case involving a refusal to hire a 51-year-old woman, an Ontario 
Board of Inquiry (Professor D.A. Soberman) decided the issue in a similar 
fashion. (Hawkes v. Browns Ornamental Iron Works , December 12, 1977). Here, 
Mrs. Hawkes had undertaken to learn the welding trade in order to improve her 
job prospects. The respondents agreed to hire her, and then changed their 
minds. The Board found that the subsequent decision was based on the Browns ' 
belief that Mrs. Hawkes was too old to fulfill the job requirements: 

..."Mrs. Brown believed that Mrs. Hawkes could not do the job not 
because of any evidence of bad health or insufficient weight or 
stature, but because of Mrs. Hawkes' age and an unsupported 
assumption about her lack of experience with heavy physical work. 
In my opinion, therefore, Mrs. Hawkes' age was a material con- 
sideration in Mrs. Brown's conduct." (p. 13). 



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14. 



Given that "age" was a '^material consideration", Professor Soberman 
considered whether this amounted to discrimination under s. 3(l)(b) of the 
Code. He set forth the issue as follows: 



"If Mrs. Hawkes ' age were the sole or dominant reason for 
the Brown's conduct there would be a violation of s. 4(1) 
(b) of the Ontario Human Rights Code . On the other hand, 
it is not a violation of the Code to refuse to hire a j ob 
applicant because of a mistaken belief in the physical 
capacity of the applicant in question. What is the effect 
of a refusal to hire when the reasons are in part outside 
the Code and in part a violation of it?" (p. 15). 

In answering that question, Professor Soberman made an analogy with 
the treatment of s. 110(3) of the Canada Labour Code R.S.C. 1970, c. L-l 
in the case of R. v. Bushnell Communications Ltd. et al (1973) 1 O.R. (2d) 
442. In that case an employee, a member of a trade union, was dismissed 
by the defendant. Considering whether the employee was dismissed because o 
his membership in a union, Hughes, J. stated at p. 447: 

"If membership in a trade union was present in the mind of the 
employer in his decision to dismiss, either as the main 
reason or incidental to it, or as one of many reasons regard- 
less of priority, s. 110(3) of the Canada Labour Code has been 
transgressed. " 

Bushnell has been cited with approval in other labour decisions, for 
example, Re Sheehan and Upper Lakes Shipping Ltd . 81 D.L.R. (3d) 208; 
Pipher v. Atlantic Bus Lines Inc . [1980] O.L.R.B. Rep. 154. Professor 
Soberman reasoned: 

"It follows that if age was present in the mind of Mrs. Brown 
in her refusal to employ Mrs. Hawkes, there has been a viol- 
ation of the Ontario Human Rights Code , s. 4(1) (b), regardless 
of the fact that other reasons mav also have been present." 
(p. 16). 



15. 

That reasoning has been adopted, citing Bushnell as authority, in 
several subsequent decisions of the Ontario Human Rights Commission. In 
Sheila Robertson v. Metropolitan Investigation Security Ltd. (August 10, 
1979), and in Pearlina Reid v. Traecey and Russelsteel Limited (May 19, 
1981), I cited with approval Professor Soberman's discussion of the Bushnell 
decision in Hawkes v. Brown. Similarly, in Jamie Bone v. Hamilton Tigercats 
(August 16, 1979), Professor John McCamus cited both Bushnell and Re Sheehan 
and Upper Lakes Shipping Ltd . , supra , in deciding that where prohibited 
grounds are "motivating factors", then a violation of the Code has occurred, 
even though a number of other factors were also present. 

In two more recent decisions, Professor Soberman has cited Bushnell 
as the "leading decision" on the issue of Code violations in the presence 
of factors not covered by the Code : Skeete and Samuel v. Jolvn Jewellry 
Ltd. (June 23, 1980); Hetty Hendry v. L.C.B.O. (August 5, 1980). 

In summary, then, Bushnell holds that where one prohibited ground is 
present, even amongst other non-prohibited grounds, a violation has occurred. 
This has been approved in other labour relations decisions, and has been 
applied by analogy in decisions of Boards of Inquiry under the Ontario Human 
Rights Code . 

A recent Alberta case has also followed this approach: Mary Godowsky 
v. The School Committee of the Countv of Two Hills No. 21 , August 14, 1979. 
In this case, the complainant was forced to retire at age 62 rather than 
accept an unreasonable change in her teaching position. To establish that 



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16. 



Mrs. Gadowsky had been a victim of age discrimination, 

"... the Board must be satisfied that she was faced with an 
adverse change in her status and that a factor influencing 
the change in status was her age." (p. 8). 

In weighing the factors that figured in the School Committee's decision, 
the Board referred with approval to a summary of the law in an article by 
Professor Ian Hunter: ' Human Rights Legislation in Canada: Its Origin, 
Development and Interpretation ' (1976), 15 U.W.O. L. Rev. 21 at p. 32: 

"... Canadian boards of inquiry have consistently held that it 
is sufficient if the prohibited ground of discrimination was 
present to the mind of the respondent, however minor a part 
it may have played in the eventual decision." 

The Board accepted that view of the law, and went further to consider 
whether the School Committee had acted in good faith in its treatment of 
Mrs. Gadowsky: 

"Clearly, if a prohibited consideration under the Individual 
Rights Protection Act intruded into the process, then it was 
not ... [acting in good faith]". (p. 10). ^ 

Indeed, if one were to summarize the Canadian decisions on age 
discrimination, it could be fairly said that if a board of inquiry finds that 
a respondent allowed a complainant's age to influence whatsoever his or 
her treatment of the complainant, notwithstanding any other factors, then 
discrimination has, in fact, occurred; this being subject only to the 

1. An appeal by the School Committee to the. Alberta Court of Queen's 
Bench is pending. 



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17. 

excepted situations covered by, and the definition of "age" contained in, 
the applicable statute. 



A brief survey of cases in the United States show that a similar 
approach has been adopted there. The general purpose of the Age Discrimination 
in Employment Act of 1967, s. 2 et seq., as amended by 29 USCA, s. 621 et seq., 
was stated by Guin, J. in Polstorff v. Fletcher (1978) 452 F. Supp. 17, at 
23: 

"The Age Discrimination in Employment Act (ADEA) provides protection 
for persons between the ages of 40 and 65. The purpose of the ADEA 
was to alleviate serious economic and psychological suffering of 
persons within this age range, caused by unreasonable prejudice 
and job discrimination." 

On the other hand, the Act was not meant to intrude into reasonable 
employer practices: 

"In short, the Act is designed only to attack those employers' 
personnel policies and practices which arbitrarily classify 
employees or potential employees on the basis of age. It does 
not seek to affect employer decisions based on individual 
assessments of a person 'a abilities, capabilities, or potential." 
(per: Robson, J. in Magruder v. Selling Areas Marketing, Inc. 
(1977) 439 F. Supp. 1155, at 1164.) 

Given that the purpose of the ADEA is to encourage assessments on merit 
rather than on age, the interpretation of what constitutes discrimination 
should be consistent with that purpose. In a case involving the Maine Human 
Rights Act 5 M.R.S.A. ss 457-72 (1979), McKusick, C.J. stated: 

"The purpose of the ... ban on age discrimination is to assure 
that performance, not age, will determine an employee's 
marketability and job security. 

That purpose would be undermined, if, in order to recover 

an employee had to establish that age was the sole, rather than 

a substantial factor motivating his discharge. 



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18. 



Accordingly, we hold that in an age discrimination case..., 
even if more than one factor affects the decision to dismiss 
an employee, the employee may recover if one factor is his 
age and in fact it made a difference in determining whether 
he was to be retained or discharged." ( Wells v. Franklin 
Broadcasting Me . , 403A 2d771 at 773.) 

The leading U.S. case which arrives at that same conclusion is 
Langesen v. The Anaconda Company 510 F. 2d 307 (1975), a decision of the 
U.S. Court of Appeal. The appeal was made by the complainant from a jury 
trial in which the judge had instructed that age must be the "sole" reason 
for the complainant's discharge. In reversing the District Court decision, 
Engel, J. held: 

"However expressed, we believe it was essential for the jury 
to understand from the instructions that there could be more 
than one factor in the decision to discharge him and that he 
was nevertheless entitled to recover if one such factor was 
his age and if in fact it made a difference in determining 
whether he was to be retained or discharged, (at p. 317). 

This decision has been followed in two more recent decisions: 
Carpenter v. Continental Trailways 446 F. Supp . 70 (1978) and, Cunningham 
v. Central Beverage Inc . 480 F. Supp. 59 (1980). In the Carpenter case, 
it was found that "age" was "one factor" considered by the employer in dis- 
missing the employee, and so the ADEA had oeen violated. Likewise, in the 
Cunningham case, "age" was one of the determining factors" in forming the 
employer's decision to dismiss the complainant. 

Thus, the approach in the U.S. has been similar to that in Canadian 
cases.''" To require that age be merely one of a number of factors influencing 



1. However, the U.S. cases perhaps adopt a more 
what constitutes a prima facie case. See: 
(1979) F. 2d 1003. 



systematic approach 
Lock v. Textron 



to 



r 



r 



- 19 - 

an employer's treatment of an employee for a claim of age discrimination 

to be valid, seems to be no different than requiring that age "play some 

part" (Wilson: supra ) , be "present in the mind" of the employer ( Hawkes : 

supra ) , or have "intruded into the process" ( Gadowsky ; supra ) , as Canadian 

Boards of Inquiry have decided. Such an approach is consistent with the 

principle that humanitarian remedial statutes ought to be interpreted lib- 

2 

erally, and in the spirit of the intended public good. 

The essential issue, in considering the evidence in an Inquiry such 
as this, is to determine whether 'age' is or is not an operative factor 
by itself in the refusal to employ. That is, is the criterion of 'age' 
present as an arbitrary basis for the refusal to employ. If it is, then 
there will be discrimination on a prohibited ground within the meaning of 
the Code , unless 'age' is a " bona fide occupational qualification and 
requirement for the position of employment." (s. 4(6) of the Code ) . Let 
us now consider the exceptional circumstances. 



The Exceptions 

In situations where "age", as a prohibited ground of discrimination 
is considered, there are exceptional circumstances where distinctions on 
that basis are permissible. Therefore, it may be lawful in some circumstances 
for employers to recognize age as a factor affecting an employee's capacity, 
and act accordingly. For this reason, most of the Canadian human rights 
statutes permit age discrimination when it is founded on a " bona fide 
occupational qualification", or where "reasonable cause" exists, (Nova Scotia 
being the only exception). Likewise, age discrimination is permitted if it 

2. See, for exaitple, The Interpretation Act , R.S.O. 1970, c. 225, 5.10. 



20. 



is carried out pursuant to a " bona fide retirement or pension plan". This 
provision exists in all of the relevant Canadian statutes. 



As could be expected, given these exceptions, many of the Canadian 
cases involve a determination of what is meant by " bona fide " or "reasonable 
In the Manitoba case of Peter Derkson v. Fiver Industries, Inc . (June 2, 197 
the Board of inquiry had to consider whether a "reasonable occupational 
qualification" or a " bona fide retirement plan" existed to defeat the prima 
facie case put forward by the complainant (per: s. 6(6) and s. 7(2) of the 
Human Rights Act S.M. 1974, c. 65). 



Professor London considered these exceptions: 

"The exception to the prohibition against discrimination on che 
basis of age which is contained in the words 'reasonable 
occupational qualification and requirement for the position or 
employment' can only refer to two circumstances. The first is 
that case where the individual by virtue of his age alone does 
not have the physical, mental or technical capacity to carry 
out his duties as an employee. It would be incumbent upon an 
employer who sought to set up this exception as a defence to 
demonstrate by convincing evidence that one can infer in the 
particular circumstances that age alone would render an 
employee physically, mentally or technically incapable of 
performing his duties. The second case ... would be where it 
can be shown that the public or other persons might be 
adversely affected or harmed because the very age of the 
employee might make it obvious he could not as safely perform 
his duties as would someone younger in age . . . Once again, 
however, substantial evidence would have to be adduced by the 
employer to demonstrate the incapacity or reduced capacity 
occasioned by the age of the employee. (p. 38). 

... I find it difficult to interpret the words of subsection 
(2) of section 7 so as to reach the conclusion that the 
establishing of a mandatory retirement age, with or without 
economic benefit at that time, constitutes a permissible term 
of a ' bona fide retirement' plan. The fact that the words 
' bona fide retirement' are lumped together with the words 
'superannuation or pension' preceding the word 'plan' indicates 
to me that the type of plan envisaged in the section is one 
that provides economic benefits for an employee once he or 



♦ 



* 



21. 



she reaches a certain age, whether or not employment ends, 
or once he or she has left the employment of the company 
either voluntarily or for cause. Moreover, the word used 
is 'plan' not 'policy'. In short, I do not think that 
the mere setting of a retirement age constitutes a term 
of the type of plan envisaged in that subsection. The 
purpose of the subsection is simply to ensure that given 
a proper plan there may be distinctions or differentials 
in benefits which depend on age. If that were not the 
case the actuarial basis of such plans might be seriously 
affected and improper benefits might be provided. (p. 44). 

Thus, Professor London's interpretation of the exceptions is that 
a "reasonable occupational qualification" requires that evidence be adduced 
to show impaired capacity of the employee or safety risks which are age- 
related, and that a "bona fide retirement plan" requires the existence of a 
regime of employee benefits, not merely a mandatory retirement policy at a 
fixed age. He found neither of these to be present in the Derkson case. 



In a recent New Brunswick case, the definition of a " bona fide 
occupational qualification" was discussed at length. ( Charles Little v. 
St. John Shipbuilding and Drydock Co. Ltd . January 10, 1980). In particular, 
the Board of Inquiry considered how the nature of the evidence available might 
influence the bona fides of an occupational qualification. 

"...[I]f medical tests are available to accurately measure 
one's biological or functional age, then such tests can 
eliminate the need to discriminate on the basis of chrono- 
logical age. 

If medical tests are not available then there is a greater 
possibility of a bona fide occupational qualification 
being necessary. 

Where medical tests are not practical for whatever reason 
and statistical data is available to show that there is a 
reasonable probability of individuals beyond a certain age 
having difficulty in meeting the minimally acceptable 



" 



22. 



performance standards for a particular job, it can be 
logically argued that a bona fide occupational quali- 
fication ought to exist - that discrimination on the 
basis of chronological age is necessary." (p. 14). 

From these two cases, a framework for dealing with the assessment 
of a "reasonable" or " bona fide " occupational qualification seems to emerge. 
On the one hand, according to the decision in Derkson, the exception may 
either pertain to the reduced capacity of the individual to carry out his 
or her duties, or to the safety of the individual or others as a result 
of some age-related impairment. This distinction was also recognized in 
the Little case, and in fact, the Board there stated: 

"... [I]n situations where public safety is a major factor, 
the burden of showing the existence of a reasonable 
occupational qualification should be less onerous than 
what otherwise might be the case." (p. 22). 

In other words, age discrimination is permissible where there is potential 
risk to public safety (or to the individual himself or his colleagues) if 
age limitations were removed. 

On the other hand, the nature of the available evidence may influence 
the toleration of age discrimination. In the Little case, the Board felt 
that where medical evidence of incapacity is difficult, or impossible to 
adduce, the bona fides of an occupational qualification should be recognized, 
so long as there is a "reasonable probability" that incapacity may ensue 
at a particular age. 

Thus, the type of job and the evidence of age related capacity are 
the two important considerations in assessing the validity of an occupational 
qualification. These factors have been weighed in a series of Ontario 
cases . 



<4 



23. 

The first of these involved the forced retirement of a fire-prevention 
officer at age 60 ( Re Ontario Human Rights Commission and the City of 
North Bay (1977) 17 O.R. (2d) 712 (Ont. C.A.). The nature of the 
complainant's job was potentially hazardous and stressful as he was required 
to examine buildings after they had burned down. No medical evidence 
was brought forward to suggest that the capacity of the ccmplainant was 
not a match for the demands of the position, but the evidence of four 
experienced firemen was heard: 



..."(T)hey felt that age 60 was an appropriate 'round-off 
figure to define the safe limites of employment in thj interests 
of the individual himself and of his fellow workers . " 

In defining what is meant by " bona fide " Professor Mackay stated: 

"... (A) lthough it is essential that a limitation be enacted or 
imposed honestly or with sincere intentions it must in addition 
be supported in fact and reason 'based on the practical reality 
of the work-a-day world and of life". 

In my view the age 60 mandatory retirement provision. . . . 
satisfies both aspects of the word " Bona fide ' . It is a 
condition honestly imposed and, on the basis of the evidence 
of the Corporation's witnesses, which I accept, it is a 
condition which reasonably and properly can be imposed in 
the special content of firefighters. Firefighters (along 
with policemen) belong to one of the mose hazardous occupations 
in Ontario. .." . (p. 13). 



Professor Mackay considered the nature of the job and the evidence 
brought forward. He also required that if the qualification is to be 
"bona fide" it must be "imposed honestly or with sincere intentions". 
If the condition were imposed with a view to escaping the provisions of 
the Ontario Human Rights Code , it could not be said to be bona fide . 



1. Frcm the decision of the Board of Inquiry (R.S. Mackay Q.C.) : Jay 
Cosgrove v. City of North Bay May 21, 1976, at p. 8 (Decision 
affirmed at Divisional Court:: September 12, 1977 and at Ont. C.A. : 
sucra) . 



c 



24. 



In another decision, Thomas Hadley v. City of Mississauga , May 21, 1976, 
handed down the same day as the Board's decision in North Bay , the same issues 
were dealt with. Once again, the complainant was a fireman who was forced 
to retire at age 60. The Board (Professor S.N. Lederman) held though, that 
in the absence of any evidence brought forward by the City that firemen 
deteriorated past age 60 to the extent that some safety risk was inevitable, 
the complainant's claim was valid. 

Professor Lederman referred to a U.S. decision ( Hodgson v. Greyhound 
Bus Lines Inc . (1974) 499 F. 2d 859.) where it was held that the employer, 
to discharge its burden of proof, must at least show that a "minimal increase 
in risk of harm" (p. 7) would result if employees were allowed to work past 
a fixed age. Here, the employer brought no such evidence forward. As such: 

"Consequently the Board has no concrete evidence before it to 
suggest that age is a bona fide occupational qualification and 
requirement of shift captain." (p. 11). 

A further decision of an Ontario Board of Inquiry dealt with precisely 
the same issues. ( Hall and Grav v. IAFF and Etobicoke Fire Dept . July 21, 
1977). In that case, the Board (Professor Bruce Dunlop) followed the Hadley 
decision, finding that where there was no evidence to show that firefighters 
over age 60 were less effective and less safe than younger employees, a bona 



25. 

fide occupational qualification was not established. The Board had heard 
some "impressionistic" evidence from the deputy chief of the Etobicoke 
Fire Dept., that indicated that some firefighters were less capable of 
responding to the demands of the job after age 60. Professor Dunlop felt, 
though, that this evidence went to show that firefighters ought to be 
allowed to retire at age 60, but should not be required to. Some "scientific 
or statistical data" would be necessary before the Board could recognize 
that the age limitation was a bona f ide occupational qualification. 

This decision was overturned by the Ontario Divisional Court ( Borough 
of Etobicoke v. Hall et al . (1980), 26 O.R. (2d) 308.) Speaking for the 
court, 0'Leary, J. disagreed with the Board of Inquiry's definition of 
" bona fide " : 

"...Fljn requiring a scientific conclusion that there was a 
significant increase in the risk to individual firefighters, 
their colleagues or to the public at large in allowing fire- 
fighters to work beyond the age of 60, he was requiring the 
employer to do far more than to show that the age limitation 
was supported in fact and reason based on the practical real- 
ity of the work-a-day world." (p. 316). 

In other words, 0'Leary, J. preferred the definition, of bona fide in the 
North Bay case. This definition is consistent with the Had ley decision 
and the U.S. decision in Hodgson v. Grevhound . That is, any evidence that 
will show a "minimal increase in risk of harm" will be sufficient to 
discharge the employer's burden of proof when the job is one where an 
employee's incapacity may expose himself or others to risk. However, Mr. 
Justice 0'Leary was willing to permit as sufficient evidence what the Board 
was not, that is, the deputy fire chief's "impressions" that the age 



< 



limitation was erected for safety purposes. That evidence was no different 

in kind, though, than the evidence presented by the experienced firefighters 

in the North Bay case, that age 60 was an appropriate "round-off" figure 

1 

for a safe retirement policy. 

The final Ontario case on this matter is that of Hawkes v. Brown T s 
Ornamental Iron Works of Belleville Ltd . (December 12, 1977 J. There, the 
Board of Inquiry (D.A. Soberman) stated: 

"...[I]t seems clearly established that the subsection [s. 4(1) (6)] 
may only be used to justify discrimination based on age when the 
respondent has satisfied the Board that there are sound reasons 
for the qualification." (p. 17). 

Professor Soberman found that the Browns' reasons could not be "sound" 
since they brought forward no evidence which might have shown that the job 
couldn't have been performed by men or women over the age of 50. 

In Canadian Human Rights Commission v. Voyageur Colonial Ltd. 
(December 1, 1980) a complaint was lodged against the respondent based on 
its policy of refusing employment as bus drivers to applicants over the 
age of 40. The respondent contended that the age limitation was based on 
a bona fide occupational qualification. 

Interestingly, the company did not state that the age qualification 
was necessary to ensure the physical suitability of candidates. Rather, 

1. The Divisional' Court decision was affirmed on appeal to the Court of 

Appeal but leave to appeal has been given to the Supreme Court of Canada. 



C 



27. 

its position was that new drivers would be placed in low seniority positions 
which inherently give rise to occupational stress. Such stress could more 
adequately be borne by drivers under age 40, in the estimation of the 
respondent . 



Since tests were administered to all potential drivers for physical 
capacity, the age limit could not have been based on the relative perform- 
ance abilities of over-40 drivers. 

The Tribunal (R.D. Abbott) heard evidence that low-seniority drivers 
were put on call, often under adverse weather conditions and on an unpre- 
dictable schedule. Evidence of a medical practitioner was to the effect 
chat no reliable test of ability to bear scress could be administered to 
applicants. As such, an age limitation would be justifiable in that people, 
by middle age (40 - 65) , tend to react more adversely to stress than younger 
people. This opinion was verified by a psychologist testifying at the 
hearing . 

Mr. Abbott adopted the test of " bona fide " put forward by Professor 
MacKay in the Cosgrove case, and found that the employment practice of the 
respondent was indeed bona fide. 



He went on to consider the test in the U.S. case of Hodgson v. Greyhound . 
According to Hodgson , if the respondents' business involved the safe trans- 
portation of passengers, it need only show that a "minimal increase in risk 
of harm" would result if the age limitation were not imposed. The Tribunal 
found that Voyageur had satisfied that onus, and as such, the age limitation 



{ 



28. 

ought to stand. 

To sum up, there are certain principles that can be derived from 
these Canadian cases. The factors that are of most significance in 
determining whether there is a bona fide occupational qualification, as 
articulated in the Perks on and Little cases, are: 1) the nature of the 
job, and 2) the type of evidence available. 



The determination will vary according to the weight attributable 
to each of these factors. Thus, where the job is hazardous, an arbitrary 
age limitation may be tolerated if it is supported "in fact and reason"; 
scientific data is not necessary: North 3ay ; Hall and Gray . However, 
if medical tests are readily available, they may go to show that an age 
limitation is unnecessary: Little . Where no element of risk is involved, 
merely the ability of the employee to carry out his or her functions, then 
"convincing evidence" or "sound reasons" must be brought forward co show tha 
age was a reliable indicator of capacity: Derkson; Hawkes . The ancillary 
requirement is that the age limitation was imposed . "honestly" or sincerely": 
North Bay ; ie. it must not merely exist to avoid the provisions of human 
rights legislation. 

With respect to the exception of a " bona fide retirement plan", such 
a plan must exist as a regime for the allocation of benefits for an employee 
not merely as a uniform mandatory retirement policy: Perks on . 



In these matters 
which have dealt with 



one 
the 



may once again turn to recent TJ 
same exceptions to a finding of 



. S. decisions 
age discrimination 



r 



29. 



A leading U.S. case which was referred to by the Ontario Board of 
Inquiry in the Hadley v. Mississauga case, is Hodgson v. Greyhound Lines , 
Inc. (1974) 499 F. 2d 859. (USCA) . There, the respondent company argued 
that its policy of hiring, as bus drivers, only persons under age 35 constit- 
uted a bona fide occupational qualification. The decision is significant 
in terms of its consideration of both the nature of the job, and the type 
of evidence available. 

The court heard evidence from experienced transportation officials 
who substantiated the respondent's claim that the age limitation was bona 
fide , but Swygert, C.J. held that evidence not to be sufficient: 



"The testimony of these officials, although persuasive in 
view of their accumulated experience in the transportation 
industry, is not of itself sufficient to establish a bona 
fide occupational qualification. In our view we find more 
compelling Greyhound's evidence relating to: the rigors 
of the extra-board work assignments; the degenerative 
physical and sensory changes in a human being brought on 
by the aging process which begins in the late thirties 
in the life of a person; and the statistical evidence 
reflecting, among other things, that Greyhound's safest 
driver is one who has sixteen to twenty years of experience 
with Greyhound which could never be attained in hiring an 
applicant forty years of age or over." (p. 363). 



Thus, where statistical and medical evidence was available, the 
opinions of experienced officials would not have been sufficient evidence 
to establish a bona fide occupational qualification. This scientific 
evidence, once brought forward, showed the Court that it would not be 
possible or practical to detect all of the degenerative changes that accom- 
panied advancing age, and as such, the age limitation was reasonable. 



30. 



Considering the nature of the job, Swygert C.J. stated: 

"...[A] public transportation carrier, such as Greyhound, 
entrusted with the lives and well-being of passengers, 
must continually strive to employ the most highly qual- 
ified persons available for the position of inter-city 
bus driver for the paramount goal of a bus driver is 
safety. Due to such compelling concerns for safety, 
it is not necessary that Greyhound show that all or 
substantially all bus driver applicants over forty could 
not perform safely ... Greyhound need only demonstrate, 
however, a minimal increase in harm for it is enough to 
show that elimination of the hiring policy might jeo- 
pardize the life of one more person than might other- 
wise occur under the present hiring practice." (p. 863). 

Substantially the same result was found in a case involving the 
mandatory retirement of firemen. ( Aaron v. David (1976) 414 F. Supp. 453). 
There, Eisele, C.J. put the matter in strong terms: 

"It is apparent that the quantum of the showing required 
of the employer is inversely proportional to the degree 
and unavoidability of the risk to the public or fellow 
employees inherent in the requirements and duties of 
the particular job. Stated another way, where the degree 
of such risks is high and methods of avoiding same (altern- 
ative to the method of a mandatory retirement age) are 
inadequate or unsure, then the more arbitrary may be 
the fixing of the mandatory retirement age. But at no 
point will the law permit, within the age bracket 
designated by the statute, the fixing of a mandatory 
retirement age based entirely on hunch, intuition, 
or stereotyping, ie. , without any empirical justification." 
(p. 461). 

The court then went on to find that since there was no evidence 
that substantial risk would result if the age limitation was eliminated, 
the restriction was not a bona fide occupational qualification. The Grey- 
hound decision was distinguished in that there, evidence of risk was adduced 
and the deterioration was not measurable. Here, evidence of risk was 
absent, and it was found that periodic medical examinations would adequately 
reveal deterioration in employees' capacities. 



c 



c 



c 1 



31. 

These decisions seem to concur in approach with the Canadian decisions. 
However, one wonders if the evidence accepted in the Hall and Gray and 
North Bay cases, as given by the experienced firemen, would have been 
sufficient in the U.S. to establish a bona fide occupational qualification, 
given the decisions in Hodgson and Aaron. The burden of proof on the 
employer seems to be more demanding, at least where scientific evidence 
is obtainable, to the extent that the opinions of witnesses are not given 
as much weight as more concrete, objective data. 



The Board of Inquiry decision in Kail and Gray is more consistent 
with these U.S. decisions, in that there, the "impressionistic" evidence 
of the deputy fire chief was held not to be sufficient to establish a 
bona fide occupational qualification. However, the Board's decision was 
overturned by the Ontario Divisional Court: (1980) 26 OR. (2d) 308. 



The Aaron decision parallels that in Little v. St. J ohn in that it 
was held that where medical evidence is readily available to test the capacity 
of employees accurately, an age limitation should not restrict those employees 
arbitrarily . 



With respect to a bona fida retirement plan (ADEA 29 USCA s. 623 (f) 
(2)), courts in the U.S. have interpreted the exception strictly. In a 
case where an employee was dismissed at age 55 as part of an austerity program, 
the U.S. District Court held that even though the program was bona fide 
and not a subterfuge to escape the statute, the employer could not administer 



32. 

the program in a discriminatory way. ( Hannan v. Chrysler Motors Corp . 
(1978) 443 F. Supp. 802) . It was found that the program required employees 
age 55 and older to retire early, whereas younger employees were laid off 
in anticipation of being recalled. Thus, there being no other factor but 
age in consideration, the employer had discriminated on the basis of age. 
Another case though, where other factors were found, yielded a different 
result: ( Thompson v. Chrysler (1978) 569 F. 2d 989). 

The requirement in the U.S. statute that the retirement plan not 
exist as a subterfuge to evade the Act, is similar to Professor Makay's 
interpretation in the North Bay case, that " bona fide " connotes "honesty" and 
"sincerity". 

To summarize the interpretation of exception clauses as they relate 
to age discrimination, one can say that an occupational qualification will 
likely be held to be bona fide if the job involved is hazardous; (for 
example, a fireman: ( North Bay ; Hall and Gray) so long as some evidence 
of increased risk with age is shown. ( Hadley) . If. the available evidence 
shows that individual medical testing of employees' capacities is impractical, 
inconclusive, or impossible, an age limitation may be necessary, and bona 
fide . ( Little) . 

The U. S. decisions follow 7 a similar approach, except that they are 
less willing to accept the opinions of experienced officials as sufficient 
evidence that an age limitation is necessary: Hodgson ; Aaron . 

The exception of a bona fide retirement plan has been held to refer to 
a regime of employee benefits, not merely to a uniform retirement policy: 



33. 

Derkson . In the U.S. a bona fide retirement plan is not an absolute 
exception if it is administered in a discriminatory way: Hannan . 



Economic Factors 

One final issue is to be considered to complete this review of the law 
of age discrimination. That is, of what importance are economic factors 
that may restrict the opportunities of an •.■ employee? 

The issue was addressed in the U.S. case of Marshall v. Arlene Knitwear , 

Inc . 454 F. Supp. 715 (1978) . In that case, a 62-year-cld designer was 

dismissed and the court found that the reason for dismissal was not "age" 

per se, but rather was an economic reason directly related to age. Because of 

seniority, the complainant had a higher salary than any of the other designers. 

Also, she was dismissed before her pension benefits vested, so the employer 

was able to reduce the amount of its contribution to the plan. Neaker, J. held: 

"The evidence compels the conclusion that the savings in salary and 
the unpaid pension benefits accruing to defendants as a result of 
Feitis' discharge were the controlling economic factors behind her 
termination. Since such economic factors are directly related to 
age, ... reliance on them to discharge Feitis constitutes age 
discrimination." (p. 730). 

This issue has not arisen for consideration in the Canadian cases, 

though it was mentioned with respect to economic factors influencing employers ' 

hiring policies by the Board of Inquiry in the New Brunswick case of little v. 

St. John Shipbuildincf and Drvdock Co. Ltd. Januarv 15, 1980: 

"Generally with respect to the hiring of individuals, an employer is 
free to pick the individual whom it considers is best qualified to 
perform the job. The fact that the person is younger or older than 
another individual who was not hired does not amount to age discrimination. 
Problems involving age discrimination may arise with respect to hiring 
policies, however, where the job requires that an individual receive 
a substantial amount of on-the-job training. Unless such an employee 
stays in the job for a long period of time, the employer will be 
unable to recour; the investment it has made in training that emplovee." 
(p. 16) 

In a B.C. case, ( Burns v. P.I.A.B. et al April 20, 1977), the complainant 
was an apprentice plurber who was dismissed when it was discovered that he did 
not comply with the age standards of the Apprentice Board (i.e. between 18 and 



34. 



25 years) . The reason for the establishment of these standards was : 



"... (I)n respect of a particular apprentice, it would have a 
greater expectation of recovering its share of his training 
costs if he were younger and likely to pay dues over a longer 
period of time." (p. 11) 

In deciding if this reason was sufficient to permit a defence of 
"reasonable cause" for the Apprenticeship Board, the Board of Inquiry held: 



"It is therefore our conclusion that on the evidence placed before 
us at this hearing, the Complainant was, by the refusal to enroll 
him in the training programme of the P.I.A.B. on the ground that he 
was more than 25 years old, and his resulting inability to comply 
with one of the conditions of employment stipulated in the 
collective agreement between the employers and the union, discriminated 
against without reasonable cause in respect of his qualification, . . . 
his occupation and employment. " 

The Apprenticeship Board, though, had not adduced evidence to show that 
the economic reasons for the standards were, in fact, valid ones. Thus, 
it is possible that if the Eoard had shown that it would, indeed, suffer 
economic loss by not adhering to the age limits, reasonable cause may have 
been found. 



A similar U.S. decision considered the ability of an Apprenticeship 

Council to prevent the employment of an apprentice on the grounds that he 
» 

was 43 yeard of age. ( Judson v. Apprenticeship and Training Council (1972) 
Or- App. , 495 P. 2d. 291). The applicable Oregon statute (OBS 659. 024 (4)) 
permitted employers to consider the apprentice's ability to complete his or 
her training, and the length of time employed after training, nevertheless 
the Council itself was not permitted to erect maximum age limits for 
potential apprentices. 



35. 



Thus, economic factors that are directly related to age may constitute 
grounds for age discrimination: Marshall v. Arlene Knitwear . Likewise, 
economically motivated age limits may not give rise to an exception of 
"reasonable cause", at least not unless it can be shown that indeed, economic 
loss will result if the limitations are withdrawn: Burns ♦ Such limitations 
imposed by an Apprenticeship Council have been held to violate human rights 
legislation in Oregon: Judson. 

In a recent federal human rights tribunal case, Kenneth Arnison v. 
Pacific Pilotage Authority 7 (July 28, 1980) , the complainant's name was 
removed from an eligibility list for employment as a pilot when he turned 
age 50. According to the regulations under the Pilotage Act s.c. 1970-71-72, 
c. 52, applicants for licenses must be between ages 23 and 50 years. 

The Tribunal, Mr. R. G. Herbert, found that the age limit did not satisfy 
s. 14(2) of the Human Rights Act as a bona fide qualification. Pilots were 
required to complete an apprenticeship period and satisfy medical and technical 
standards during which their abilities could be accurately tested. 

The Tribunal also considered the economic factors as an issue. If the 
complainant were granted a licence at age 52, and became fully qualified after 
three years' experience at age 55, then there would remain only ten years of 
active employment until retirement at age 65. Mr . Herbert did not consider 
this situation to give rise to a bona fide occupational qualification : 

"It might, for example, be possible to regard a minimum of 5 years 
fully qualified availability for service prior to retirement as 
a basis for fixing an upper age limit on eligibility and be regarded as 
a bona fide occupational qualification." 

That is, ten years' service was sufficient under the circumstances. 

The Tribunal went on to consider whether s. 14(b) (ii) of the Human 

Rights Act permitted the imposition of an upper age limit as provided by 



36. 

law or under regulations made by Governor in Council. Under the 
Pilotage Act (s. 42) , however, the Governor in Council nay only prescribe 
"nunimum qualifications respecting ... age", not a maximum age. Thus, the 
Governor in Council was acting beyond its authority in establishing a 
maximum age in the regulations, as found by the Tribunal. 

The Tribunal ordered that the complainant be placed on the top of the 
eligibility list. 

The Authority appealed the decision of the Tribunal to the Federal 
Court of Appeal. La Dain, J. held that the setting of a maximum a ge 
amounted to the prescription of minimum qualifications under the 
Regulations pursuant to S. 42 of the Pilotage Act . As such, the Governor 
in Council was not acting ultra vires in setting the maximum age standard. 



Thus, the Court found that the disqualification of the complainant 
was not a discriminatory practice. An appeal to the Supreme Court of 
Canada is pending. 

I have discussed briefly the jurisprudence related to a possible 
'economic factors" exception for the sake of completeness in my review of the 
law and also because of some of the evidence given in the Inquiry. 

For example, an internal memo of Hydro was filed, as Exhibit No. 17, which 
reads in part: 



36a. 



"Be: "Cost-Benefit Batio" as it applies to 
the Becruitment of Apprentices 



It is generally accepted that apprentices do not 
re torn much in the way of useful production in the early stages 
of their program and that this situation improves steadily as 
they receive training and improve their skills. 

It is further considered valid that the cost to the 
Corporation of apprenticeship training is in the order of 
$ 26,000. per person, per year. This would translate to a total 
net cost per person of at least $ 100,000 over the 4 and 2 year 
program. 

It is estimated we should receive a minimum of 
3 to 4 years work at the Journeyman composite trade level 
for each year of training to make the apprenticeship program 
viable. This factor coupled with the pressure of ever 
lowering retirement ages encourages us to look toward the 
18 to 31 year old applicant as best meeting this criteria . " 

However, counsel for the Respondent did not advance an argument that 

the Bespondent, Hydro, was relying upon 'age' as being a "bona fide 

occupational qualification" for employment as an apprentice electrician, 

and the defence afforded by s. 4(6) of the Code. I think counsel was quite 

correct in taking this position, given all the evidence, ( Transcript , 

pp. 416, 420) , the particular fact that Mr. O'Brien was only 40 years of 

age at the time he applied for an apprentice electrician position, with 

Hydro, and given the relevant law. 



37. 



The Evidence as to the Factual Situation Related to the Complaint 

Mr. O'Brien alleged he applied for the position of apprentice 
electrician in May of 197 7, with Ontario Hydro, at which time he was 
40 years old. Mr. O'Brien's background includes three years of 
electrical engineering at university, a B.A. (1969) in maths and 
geography from the University of Ottawa, and a certificate from Ontario 
Teachers' College. He has worked at different jobs at different points 
in his adult life, including with an insurance company, as a serviceman 
of business machines, as a mailman with the post office, renovating 
houses, as a security guard, and as a high school teacher. At a couple 
of points, he took time off for extensive travel. 

Mr. O'Brien graduated from Teachers' College in May, 1977, but was 
unable to obtain a teaching job due to the then, and continuing surplus 
of teachers. 

At the time of his seeking employment with Ontario Hydro, Mr. 0'3ri 
was unemployed, and understandably very concerned about supporting his 
wife and two children ( Transcript , pp. 10, 16, 17). On May 10, 1977, 
he went to the Ministry of Colleges and Universities, and obtained an 
"apprenticeship card" (Transcript, pp. 70, 71). This card, in the view 
of Ontario Hydro, in itself only really establishes that the cardholder 
has at least the equivalent of a Grade 10 education. ( Transcript , p. 226) 
There was no evidence to suggest that the apprenticeship card had any 
greater significance. 

Mr. O'Brien did not obtain work until the following December, as a 
security guard, and has continued in that employ, as a supervisor of 
security guards, to the time of the hearing. There was little concrete 



38. 

evidence as to attempts by Mr. O'Brien to find employment between 
May and December, 1977. At the time of the hearing, Mr. O'Brien was 
in the course of completing the requirements to qualify as a real 
estate sales person. 

Mr. O'Brien's wife had brought a newspaper advertisement ( Exhibit 
No. 3; Toronto Star, May 21, 1977) in which Ontario Hydro was soliciting 
applicants for apprentice and other positions with Hydro's thermal power 
generating plants, (including the position of apprentice electrician) to 
Mr. O'Brien's attention, and he says he attended at Ontario Hydro's 
Toronto office and there completed and submitted an application, 
( Transcript , pp. 11, 43) for the position of apprentice electrician. 
Hydro's purpose of course, is to provide electrical energy for Ontario, 
and this is both an enormous, and by its nature extremely technically 
demanding task with maintenance of complex equipment at power generating 
plants being an important function. Hydro has seme 2 ",000 employees. 

There was conflict in the evidence as to whether Mr. 0' Brier, 
had actually submitted a formal applications, for employment, or just had 
a telephone conversation as to whether he might be successful if he did 
apply, before the complaint was filed. Mr. O'Brien was certain he had 
applied ( Transcript , pp. 8, 42, 45) . Mr. John low, a staffing officer 
with Ontario Hydro who spoke with Mr. O'Brien over the telephone, about 
May 25, 1977, ( Transcript , p. 230) was not aware of any application at the 
time of the conversation ( Transcript , pp. 151, 218, 220, 221, 231, 232, 396) 
and a subsequent diligent search for an application in Ontario Hydro's 
records was unsuccessful. ( Transcript , pp. 213, 221, 222, 223, 397, 398) . 



( 



( 



39. 

However, Mr. O'Brien's own testimony indicated that in his 
conversation with Mr. Low, Mr. O'Brien inferred that Mr. Low did not 
know of an application ( Transcript , pp. 54, 55) , and Mrs. O'Brien, who 
had also spoken with Mr. Low, was also somewhat uncertain as to whether 
Mr. Low knew about an application ( Transcript , p. 96) . Mr. Low 
testified he was of the understanding Mr. O'Brien had not applied, and 
that he invited Mr. O'Brien to apply during their telephone conversation 
( Transcript , pp. 220, 231, 238). Mr. O'Brien should have known that Mr. 
Low did not have any personal knowledge of an application having been 
filed. 

All applications at the time were retained for about four months, 
so a search for Mr. O'Brien's application some three months after (in 
August, 1977) , Mr. O'Brien says he applied, when Hydro first learned 
of the complaint, should have turned up the application, if such there 
was ( Transcript , pp. 221, 393, 394). 

The complaint itself ( Exhibit No. 3) does not refer to an 
application and in itself clearly implies there was no application filed 

However, I am prepared to accept the evidence of Mr. O'Brien on 
this point and find that Mr. O'Brien did complete an application for 
employment with Ontario Hydro, on or about the time he and Mrs. O'Brien 
say he did, May 24, 1977. ( Transcript , p. 109) . However, I find also 
that Mr. Low did not know about the application at any time. Ontario 
Hydro had a great many applications at the time, some 4433 ( Transcript , 
pp. 150, 151; Exhibit No. 14) for the positions offered and one cannot 
know what happened to Mr. O'Brien's application, except to guess 



< 



r 



40. 



that Mr. O'Brien was rejected as a suitable applicant by one of the 
staffing officers (other than Mr. Low) ; the rejected application 
inadvertently went astray or the application was misplaced before 
scrutiny, or was misfiled (perhaps it was completed incorrectly) or 
was destroyed before Hydro was aware of the Complaint. I have no doubt 
in finding that the application was not intentionally misplaced or 
destroyed due to Mr. O'Brien's Complaint, and in my view, the loss 
of the application is inconsequential to the disposition of the issues 
before this Inquiry. Also, my remarks about the missing application 
should not be construed as a slight on Hydro's filing system which is 
quite impressive. It may even be that somehow Mr. O'Brien, after 
completing the application, inadvertently did not actually transmit 
it to Hydro as he says he did, but misplaced it. The missing application 
form is inconsequential to my decision, (although it is of consequence 
to any consideration of remedy) . 

Much does turn on Mr. O'Brien's conversation with Mr. Lew. The 
critical issue is as to whether Mr. Low, in effect, advised Mr. O'Brien 
that he would not be considered for employment by Ontario Hydro because 
of his age. I think there was some ratiDnalizing after the fact by 
Mr. O'Brien, Mrs. O'Brien and Mr. Lev: as to what was actually said. Mr. 
O'Brien inferred that Mr. Low thought that Mr. O'Brien's age was a very 
negative factor , and a main problem in his being successful. 
( Transcript , pp. 14, 16, 17) . In the five or ten minute conversation 
they had, it is also clear from Mr. O'Brien's own testimony that Mr. 
Low discussed many of the factors Mr. Low considered pertinent to an 
evaluation of an applicant — Mr. O'Brien's background, the menial 
nature of the tasks performed by an apprentice electrician, the 
requirement of shift work and possible relocation, the importance 



i 



of staying with Hydro after completion of an apprenticeship (Hydro 
has a considerable investment in an apprentice through a four year 
apprentice program) , and the low rate of pay ( Transcript , pp. 56, 58, 
66-68, 71, 74-80). Mr. Low testified that he was asked in the telephone 
conversation by Mrs. O'Brien about age and said that he assured her that 
Hydro has no "age restrictions" ( Transcript , p. 230, 233) , and denied 
that he told her that "apprentices were between the ages of 19 and 22", 
testifying that in fact apprentices are usually IS to 28 years of age. 
He testified he similarly assured Mr. O'Brien that there were no age 
restrictions. ( Transcript , pp. 234, 235) . 

Mr. Low testified that he did review both the nature of the 

position with Mr. O'Brien and Mr. O'Brien's chances of success. 

"I told him that we advertised, screened, tested, interviewed 
and at that point he asked what his chances of surviving at 
age 40 the screening process would be. I indicated to him 
that competition was stiff. That at age 40 I would have 
expected the applicant to be a journeyman electrician . That 
the majority of applications we received are from those in 
the age group of 18 to 28 who have emerged from a recognized 
electrical training program from a high school or community 
college." ( Transcript , p. 236) . ( Emphasis added ) 

In his complaint, made cut the day after the telephone conversation, 
Mr. O'Brien says that Mr. Low told him that "at 40 years, any man I hire is a 
journeyman, qualified electrician". ( Exhibit No. 3) 

However, while Mr. Low said he ( Transcript , p. 235) felt Mr. 
O'Brien's chances of employment were slim, after speaking with him, he 
testified he did not communicate that conclusion to Mr. O'Brien in the 
telephone conversation. 



( 



( 



< 



42. 



"Q. Why did you not coinnunicate that to him? 

"A. I don't think it is a professional ethnic to in fact 
relay that information to a candidate. We don't do it 
during interviews, we have no reason to attempt to 
settle a matter of that sort in that way. 

"Q. Why not? 

A. It is difficult for the staffing officers, it is 
difficult for the candidate or applicant, it just 
isn't good practice, unsuccessful candidates are 
notified by letter after interview. 

Q. Did you tell him he would not be seriously considered? 

A. No, never. 

Q. Again for the reasons you have just outlined? 

A. Yes . 

Q. Would he have been seriously considered? 

A. He would have been seriously considered but once we 
had examined his record he would not have been 
acceptable to the program. 

Q. Did you know that in 1377? 

A. We knew that in conversation with him that it was unlikely 
that he would be successful, but had not seen his paper. 
We don't make those decisions over the phone." 
•( Transcript , p. 244) . 



Mrs. O'Brien testified that she had called Ontario Hydro after 
Mr. O'Brien's application was filed, to inquire about his chances, 
because she was "concerned about ... (his being) 40 years old" and 
wondered whether his age would be ."a barrier". She testified Mr. low 
told her there was "no hope . . . (and) apprentices that we hire are 
between the ages of 19 and 22". ( Transcript , pp. 91, 12, 93, 106, 119). 



43. 

The training program for apprentice electricians is quite 
extensive, including four years apprenticeship, followed by a further 
two years at the journeyman electrician level training in instrument 
mechanics, so that at the end of six years the person is at the shift 
maintainer No. 1 level, and is a highly skilled employee ( Transcript , 
pp. 130-132) . A brief descriptive memo of Hydro's "Electrician and 
Instrument Mechanic Apprenticeships" was filed in evidence as 
Exhibit No. 7. A similar "Occupational Definition", drawn up by Hydro with 
the pertinent bargaining union, was filed as Exhibit No. 8. The policies 
for staffing Ontario Hydro, and filling vacancies, are set forth 
in its "Corporate Policy Statement", filed as Exhibit No. 9. The 
"Thermal Generating" component of Hydro would forward a "help requisition" 
form setting forth its need for apprentice electricians, (a sample 
form was filed as Exhibit No. 10) to the staffing personnel who would then 
place required newspaper advertisements. A document, "Conditions of 
Employment and Apprenticeship Training Standards Ontario Hydro - Thermal 
Generating Division", was filed as Exhibit No. 12. A document was 
prepared by Hydro for the Ontario Human Rights Commission in response 
to the Complaint, "Application Recruitment Screening and Interview 
Criteria", and filed as Exhibit No. 15. An internal memo of Hydro 
elaborating on the nature of the position was filed as Exhibit No. 16. 

Mr. Low described the recruitment process. An application first 
goes to a staffing clerk, then to one of the seven staffing officers, such 
as Mr. Low then was, who does the initial screening. The staffing 
officer cannot hire, but can reject applicants at that point in the 



! 



44. 

process. Hie staffing officer will examine the application, reject 

at that point on the basis of the paper submitted, or request an 

interview with the applicant, perhaps accompanied with tests ( Transcript , 

pp. 210, 330) and following the interview reject or recommend to the 

"training officer" who conducts a further interview ( Transcript , p. 210) 

and makes the ultimate decision to hire or not hire. ( Transcript , pp. 143-155) . 

A "Schedule of procedures" setting forth this recruitment process was 

filed as Exhibit No. 11. 

Some 127 offers were made in the instant recruitment situation with 
109 hired (including 55 as apprentice electricians) ( Exhibit No. 14; 
Ontario Hydro Thermal Generating Division, Thermal Training Department, 
Annual Report 1977; Transcript , p. 211) . 

A memorandum as to" 'Cost Benefit Patio' as it applies in the 
Recruitment of Apprentices", ( Exhibit No. 17) 'was also prepared by Hydro 
for the Ontario Human Rights Commission, in response to the O'Brien 
Complaint. 

Exhibits No. 19 and 20 were memoranda developed which relate to 
Hydro's recruitment of apprentices for 1977. They provide data with 
respect to the 245 applicants who reached the second interview stage but 
were unsuccessful ( Transcript , p. 446) . They show both the average and 
median age for this group to be 23, and the oldest person hired to have 
been 28 (five at that age) . However, one 35 year old person and one 37 
year old person did get to the second interview stage ( Exhibit No. 20, 
Transcript , pp. 277, 278, 445). Including those two, there were twelve 



1. Exhibit No. 17 is set forth supra , page 36a. 



45. 

persons interviewed who were 30 years of age or over. A total of 
109 were hired from those interviewed, including 55 apprentice electricians 
all of whom were 28 years of age or younger. ( Transcript , p. 444, 278) . 
This recruitment and selection process seems generally to work well as the 
evidence was that there was a zero attrition rate for apprentice 
electricians for 1976 and 1977 ( Transcript , pp. 399, 400). 

Mr. Low and Mr. Velio Medri, training officer at Ontario Hydro 

for the thermal generation division personnel office, both testified that 
Ontario Hydro had in fact hired a group of persons for the position of 
apprentice electrician between the ages of 40 and 65, but this seems to 
have related to a specific, unique situation in northern Onrario when 
a number of people in a given community were put out of work due to the 
shut-down or cut-back of an industry ( Trans cripr. , pp. 434, 468) . There 
do not appear to be any apprentice electricians over age 40 with Hydro in 
southern Ontario ( Transcript , p. 552) . However, there were, of course, 
relatively few applicants in that age bracket. 

More generally, Mr. John Walker, Personnel Services Corordinator 
for Ontario Hydro, testified that a study was done to determine that 
the corporation in 1976 did hire 72 people between the ages of 40 and 45, 
61 between the ages of 45 and 49 and 57 between the ages of 50 and 64, 
the total personnel hired in 1976 being some 1,400. ( Trans crip t , pp . 453, 
454, Exhibits No. 22 and No. 23) . 

For 1977, 469 were hired between the ages of 40 and 65, out of a 
total of some 2,250 ( Transcript , p. 454, Exhibit No. 24). 



( 



( 



( 



46. 

These statistics, as well as the oral testimony of the Hydro 
officers who testified at the hearing, establish, in my view, that 
Hydro certainly has no general corporate policy of discriminating 
on the basis of age in its hiring of persons for employment. 

However, the question before this Inquiry is whether there was 
discrimination on the basis of age as prohibited by the Code with respect 
to Mr. O'Brien's specific enquiry to be an apprentice electrician, and 
whether there is discrimination as to the hiring of apprentice electricians 
for thermal generating plants generally by those within Hydro responsible 
for recruiting this particular group of employees. If such is the case, 
then Hydro would be liable for its employees ' breaches of the Code . 

Mr. Low, in cross-examination, testified: 

Q. How many applications have you personally received 
from individuals between the ages of 40 and 65? 

A. I have no way of knowing. 

Q. Did you receive some in 1977? 

A. Again, I have no way of knowing. I would expect 
there would be, just as in the way we get a mix in 
the type of applications. 

Q. Bur you have never interviewed any of them? 

A. Yes, I have interviewed some but not for the apprenticeship 
position. We regularly interview between 40 and 65 for 
other positions in the corporation. 

Q. But not for electricians — apprentice electricians? 

A. That's right. ( Transcript , pp. 433, 434). 

Mr. Medri, who made the final hiring decision for apprentice 
electricians, testified that he was concerned about obtaining career 
tradesmen, rather than someone just looking for a job, and that a stable 



47. 

work record in respect of the applicant was an important indicator in 
this regard ( Transcript , p. 476) . He had given a memo ( Exhibit No. 16) 
to Mr. Low in which he emphasized that promotion opportunities for 
tradesmen are limited and expressed his concern about hiring 
academically over-qualified people who "are not likely to be satisfied 
with an apprenticeship (trades type job) in the long run". ( Exhibit No. 16) 
His primary goal was "to identify a person who has the practical abilities 
and the practical interests". ( Transcript , p. 558) . 

Did Mr. Low (and Mr. Medri) regard age as an arbitrary factor in 
screening applicants, unless such applicants are already journeymen? 
Mr. Low and Mr. Medri were both very skeptical of the reasons and merits 
in an individual changing careers at mid-age. 

Mr. Medri had no direct communication with Mr. O'Brien, but Mr. 
Medri 's views permeated the Hydro hiring process for apprentices (as 
evidenced by Exhibit No.l6)and these views certainly influenced Mr. Low 
(Transcript, pp. 255, 256, 390) , and the other staffing officers as to 
how they considered applicants. Mr. Medri was the hiring officer. 

Mr. Medri testified: 

Q. One final question, you were present in the room, I believe, 
when I examined Mr. O'Brien and his past record? 

A. That is correct. 

Q. I am not going to ask you whether you would hire 

such an individual, but I am going to ask you this. 
Would you, assuming that record is correct that you 
heard, would you have such an individual come in for 
an interview? 

A. No, I would reject him virtually automatically at the 
paper screening stage. 



48. 



Q. Could you tell us why, please? 

A. According to my standards, he is academically over- 
qualified. I have now been involved over the last 
seven years in hiring, I would have to hazard a guess, 
three or four hundred apprentices and I have never 
hired a person with a university degree into an 
apprenticeship. I have hired or been involved 
with out of these three or four hundred people with 
one degreed person, if I could explain that. This was 
an operator and against my advice it was the decision of 
thermal training centre to hire a person with a teaching 
degree and the intent was to have this person work in the 
operating field for a while and then come into the 
training centre and become an instructor, an assistant 
training officer for our operations. As a footnote, no 
sooner was he in the door then did he start putting in 
applications for other jobs. 

Q. That has had an effect on you . . . 

A. I had made that decision long before this. I argued 

against hiring this sort of individual because it isn't 
the type of job you need a degree nor is a person with 
a degree likely to be satisfied on any sort of short- 
term or long-term or short-term basis doing this sort 
of work. I think a person who has gone to school and 
has got himself a degree has other aspirations in life 
other than working shift work in a steam plant. 

THE CHAIRMEN: Of these three or four hundred people, apart 
from none of them having degrees but this one. What 
about having seme training at university, would you 
hire people with that background? 

THE WITNESS : There are cases of that and I go into great 

detail trying to find out what happened. There have been 
people with one or two years of engineering, they have been 
debarred because they failed twice. I look at their 
siuation, are they likely to go back and complete it? 
What kind of external influences are there that would 
suggest he is likely to go back and complete it and 
I make an assessment, if i am satisfied that this 
individual has accepted that no, he is not going to 
become a university graduate, I would take a chance 
on him. 



49. 

THE CKAIKMAN: I should leave this fcr cross-examination, 
but you said that you would almost automatically 
reject Mr. O'Brien. He didn't have an engineering 
degree, he had three years, I guess he had an arts 
degree at that point. 

THE WITNESS: Any degree. 

THE CHAIRMAN: That was the point of over-qualification. 

THE WITNESS: That is correct. ( Transcript , pp. 474-476) . 

Certainly Mr. Medri was testifying from some experience and with 
honestly held and expressed views. One cannot deny the relevancy of 
these concerns or even that they might be true in a good many situations. 
However, he was making a generalization about applicants with a university 
degree that is not proven, and certainly that cannot be taken as 
universally true. The criticism of being "over-qualified" is an impcssibl 
and invidious one for an applicant to respond to. He has no control 
over such a situation. Presumably, he cannot get a job in the area 
for which he is qualified (teaching) , obviously cannot get a position 
in an area for which he is underqualified, and now is precluded from 
obtaining a position in a trade for which he is "over-qualif iec" . That 
would seem to make it impossible to find employment. Moreover, 
individuals have all kinds of reasons for changing jobs, perhaps to get 
away from undue pressure or to have a position of less responsibility, 
perhaps because they are 'burned-cut' in their present occupation, 
or perhaps just because of present unemployment. Moreover, not 
everyone pursues a university degree just for employment purposes. 

There were some positives, as well as some negatives, to consider 
with respect to Mr. O'Brien's application. However, he would not 
really receive consideration by Mr. Medri given the simple, unfortunate 
fact of his having a university degree. I realize the quoted 
testimony relates simply to a candidate's educational qualifications 
rather than to his age. However, considering all the evidence, I think 



50. 



the same stereotypical view was present with respect to age as a 
criterion for apprenticeship positions. 

It is true that Mr. O'Brien had never really embarked substantially 
into any particular career, but rather had several tentative starts. 
All in all, I think his stated qualifications deserved an interview, 
and I think Mr. low was quite frankly telling him that there was no 
point in applying given his age and the fact he was not then a 
journeyman electrician. Mr. O'Brien had some considerable background in 
electrical theory, he obviously had some aptitude for the practical as 
evidenced by his being a renovator of houses, and he was desirous of 
a firm career at this point in his life given his family responsibilities 
and his past bad luck. He might possibly have been a 'diamond in the 
rough} as it were. 

However, Mr. O'Brien's work history does also suggest that he might 
be an unstable employee, although this could really only be determined 
upon an interview. Perhaps the ultimate assessment of his candidacy, 
after an interview, would be that he is unreliable, and therefore, 
he should not be offered an apprentice position for this reason (as Mr. 
Medri suggested in his testimony, Transcript , p. 476) . But it is my 
view, considering all the evidence that he would not have been considered 
on the merits by Mr. Low and Mr. Medri simply because of the fact of his 
age coupled with the fact that he was not an experienced journeyman. 

I find, considering all the evidence, that Mr. Low did discourage 
Mr. O'Brien for the reason that Mr. Low and Ontario Hydro were so 



51 . 

skeptical of 40 year old applicants (who were not journeymen electricians) 
for apprenticeship positions, that there was no real point in Mr. O'Brien 
pursuing an application. Do Mr. Low, Mr. O'Brien was not an ideal 
candidate on the face of it, and Hydro had a great many applications, 
and Mr. low was really telling Mr. O'Brien that he had no chance, given 
his age coupled with the fact that Mr. O'Brien had not a work history 
of directly related work (i.e. Mr. O'Brien was not a journeyman 
electrician) . 

Mr. O'Brien did not, but should have followed up his enquiry, 
in all events. He was discouraged after his conversation with Mr. Low, 
but did not pursue the matter to see what had happened to the application 
he says he had put in, and he had no basis for presuming that Mr. Lew 
personally had either dealt with it or would be the particular 
staffing officer to review it, or even knew of it. Indeed, he should 
have realized that Mr. Low had not any personal knowledge of the application. 
Mr. O'Brien did not press Mr. Low for an interview in the conversation, 
nor did he press Hydro after the conversation, at least prior to 
filing his complaint. 

With respect to Mr. Low's telephone conversation with each of the 
O'Briens, in my view, Mr. Low did not expressly say that Ontario Hydro 
would refuse to employ Mr. O'Brien. Indeed, I accept his evidence that 
he said he told them there were no age restrictions. There was not a 
direct refusal to employ by Mr. Low on behalf of Hydro. If there had 
been such a direct refusal and it was on the basis of age, there clearly 
would be discrimination that is prohibited by the Code . 

However, Mr. Low was discouraging to Mr. O'Brien, and obviously 
discouragement can, in a given factual situation, amount to an applicant 



52. 

thinking that he will be refused employment if he pursues the matter. 
An employer might use words to the effect that an applicant can 
apply and no (formal) decision will be made until then, but there is 
really no point in applying because of the applicant's age . In such 
event, there would be discrimination as prohibited by the Code . 
In my view, considering all the evidence, that is what happened in the 
instant situation. 

Mr. Low's words to the O'Briens were discouraging, and 
the primary basis for this discouragement was age-related. What Mr. 
Low was saying, as the staffing officer, in effect, (and Mr. Medri, as 
the training (hiring) officer behind him) , and Hydro generally through 
these employees in charge of hiring, was that age is a factor considered 
in hiring apprentices and when an applicant is 40 years of age or so, 
there is great skepticism about whether he is suitable due simply 
to the fact of his age , (if he is not a journeyman electrician) , and 
given the abundancy of young candidates, the 40 year old applicant has 
no real chance. 

Let us hypothesize that a 40 year old applicant had held many 
jobs very briefly before applying for the apprenticeship program, and 
had not demonstrated any knowledge or interest in electrical work 
prior to applying. Hydro should understandably view this record very 
adversely, in assessing that applicant. Hydro has a great many applicants, 
and it wants to make sure it obtains the best qualified in its long run 
interests. As counsel for Hydro argued, everyone generates "headwinds" 
as he or she gets older, for good or bad. However, on the other hand, 
if an applicant to be an electrician apprentice had spent the previous 



53. 

twenty years in the military, and had learned a directly related 
trade, (i.e. was a journeyman) I think Hydro would consider him to 
have an advantage for employment, as a journeyman. It is the in-between 
situations, of course, that are difficult and specifically the candidate 
who can demonstrate capability and interest , but by choice or compulsion 
desires a change of careers, say from being a trained teacher to being 
an apprentice electricicn. Mr. O'Brien, at first glance (that is with 
knowledge of his background but in the absence of an extensive interview 
and testing) would fall into this category. 

Any employer such as Hydro, cannot and should not ignore the past 
of a 40 year old applicant in assessing his or her prospects for the 
future. The candidate's work record (stable or unstable, related or 
non-related to electrical skills) interests (such as hobbies, whether 
they are related or not related to the electrician trade) education and 
aptitude will be scrutinized and are pertinent criteria in assessing 
the candidate's prospects. 

However, Mr. Low's conversation with Mr. O'Brien was not really 
directed simply to determine whether Mr. O'Brien had good personal 
attributes (for example, was stable) and whether he had related 
experience. It wasn't just that Mr. Low was skeptical because Mr. O'Brien 
was 40 and had not worked in the related field. Once he determined Mr. 
O'Brien did not have related experience (was not a journeyman) Mr. Low 
was really saying to Mr. O'Brien that because you are 40 years of age 
Hydro is not seriously interested because there are too many good young 
applicants. I think this approach is implicitly using age as an 
arbitrary standard, contrary to the Code . Mr. Lew considered that age 
had significance in c^tarmining whether a person might adapt to certain 
job conditions - for example, certai n menial tasks, minimal responsibility, 



c 



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54. 

low pay, shift work, relocation, ease in returning to classroom 
study, and these were the central matters Mr. Low brought up in their 
^conversation ( Transcript , pp. 58, 59, 67, 68, 69, 73, 74, 250 -254, 401-404, 
e 428) . At first glance, many people might react, because of a widely held 
viewpoint about age, the same way as Mr. Low. Indeed, the common 
-perception of apprentices is that they are young. A brochure of the 
Ontario Ministry of Colleges and Universities , filed as Exhibit No. 4, 
includes the phrase "the apprenticeship system in Ontario. How 
ife-worksv for youth. . . . (and) Apprentices are goal-oriented young men 
and- women. . . . " I have no doubt that Mr. Low was endeavouring to act 
honestly, conscientiously, in the best interests of Hydro and as 
directed by Mr. Medri. The quoted references to "young" in the government 
brochure are obviously simply there because most apprentices will be 
young in fact, and. just embarking upon the beginning of a career. The 
typical apprentice- is young. But it is an all too easy, unconsciously 
taken further step for our society to think they have to be young, 
and- that youth is a prerequisite to being an apprentice. Then age 
becomes an arbitrary standard,- and it is this arbitrary use of age as a 
standard for employment that is prohibited by the Code . In my view, 
considering all the evidence and I so find, the hiring process of Hydro for 
apprentice electricians, specifically Mr. Low and Mr. Medri, made this 
mistake. 

If one reflects, how can one possibly say that simply being 40 years 
of -age can be in any way an adverse factor in determining an individual's 
responsiveness and adaptability to the aspects of the job that Mr. Low 
discussed with Mr. O'Brien. The matter really turns simply upon the 
particular individual, not his age. 



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55. 

Mr. Low was not simply pointing out to Mr. O'Brien the negatives 
that many 40 year olds with a university background (or younger 
individuals with no university training) might perceive in looking at 
the apprentice electrician position although he rationalized on this 
basis after-the-fact. Father, he was saying to Mr. O'Brien that Hydro 
perceives 40 year olds generally to have that perception and therefore 
are unsatisfactory applicants for apprentice positions. Mr. Low and Mr. 
Medri do, I am sure, a very good job generally in recruiting for Hydro. 
They want to get good people and they have a great many applicants. 
They are consciencious employees. 

However, considering all the evidence, I find that they employ 
age as an arbitrary factor in the recruitment of apprentices. If Mr. 
O'Brien had been, say, 22 years of age with his background in electrical 
theory, he would, I am sure, have most certainly been encouraged by Mr. 
Low, and one way or the other it w ould have been realized at a later 
point his application had gone astray, he would have filed a new one 
and been a prime candidate at least to the stage of the first interview 
and testing. But his age was the significant factor that resulted in his 
being discouraged by Mr. Low. I really do not think it was his varied 
background that mattered. If Mr. O'Brien had, say, worked for the post 
office as a mailman for eighteen years or so after dropping out of 
university, (i.e. shown he was undoubtedly steady and reliable in his work 
record) I do not think he would have received any serious consideration 
by Mr. Low and Mr. Medri. They wanted, quite understandably and quite 
correctly, good applicants for the position of apprentice. However, 
they could find enough good young applicants who met their criteria, 
that they were prepared to arbitrarily exclude a 40 year old applicant. 



\ 



56. 

His only .chance for employment would be as a journeyman electrician, 
not as an apprentice, and he was not, of course, a journeyman electrician. 

CONCLUSION : 

For the reasons discussed, I find that Ontario Hydro discriminated 
against the Complainant on the basis of age, contrary to s. 4(1) (b) of 
the Code . 

In my view, considering all the evidence, this is not a case 
where the Complainant should receive any award for damages. There was 
no concrete evidence as to the Complaint seeking other positions, and 
notwithstanding that I have found discrimination contrary to the Code 
by Hydro, I think the Complainant should have pursued his interest in 
employment with' Hydro by pressing Hydro for further consideration. I do 
not think the simple fact of the five or ten minute private telephone 
conversation, coupled with a missing application, should be a basis for 
damages. Mr. O'Brien knew or should have known, that Mr. Low did not 
personally know anything about his application having been filed, and 
it was Mr. O'Brien's incomplete Complaint, which made no reference to 
an application having been filed, that led Hydro to believe, until this 
Inquiry convened, that a formal application for employment was never 
received by Hydro. If an application had been seen by Mr. Low, in the 
absence of any conversation with Mr. O'Brien, I think it would have been 
rejected given the view of Mr. Low about the simple, arbitrary, fact of 
Mr. O'Brien's age with no directly related work experience. However, 
if Mr. Low had ever known there was an application filed, that factor, 
coupled with the telephone conversation and the Complaint, would have 
resulted in an interview and I think at that point Mr. O'Brien would have had 
a further assessment of his candidacy. It would have been better for Hydro to 



have someone other than Mr. Low interview Mr. O'Brien, given the history 
of the matter, so that fairness was seen to be done, although, I do think 
that Mr. Low, given his undoubted reflection upon the hiring practices 
as a result of the history of this Complaint and of this Inquiry, will 
objectively assess candidates for the position of apprentice in the future 
without employing age as an arbitrary factor. He and Mr. Medri are, as I 
have emphasized, capable, conscientious employees who want to obtain the 
best qualified candidates as apprentice electricians for Hydro. This must 
be emphasized. However, in doing so, they implicitly have been using 
"age" as an arbitrary factor in assessing candidates for the apprentice 
position. I am certain they do so only because they are zealous in 
considering factors they personally think proper and necessary to their 
assessment of candidates. The point is, they consider "age" in itself as 
an adverse factor in the consideration of applicants for the position cf 
apprentice , unconsciously holding and reflecting a value that is, I think, 
fairly widely held in our society, but which, in the enlightened public 
policy as enunciated by the provisions of the Code , results in an unlawful 
act when acted upon such that it is a factor in refusing to employ a person. 
I appreciate that just as it is difficult to purge old values, in a society of 
rapidly changing values, it is similarly difficult to purge their unrealized 
influence in affecting decision-making actions in the recruitment and 
employment process. Such values often remain at the unconcious level for 
many who do their very best at the conscious level to make proper, and in 
their opinion, best-possible decisions. Mr. Low and Mr. Medri neither 
intended to treat candidates unfairly, nor did they act in the employment 
decision-making process of Hydro with the belief that they were acting 
contrary to the Code. 



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58. 

The Complainant did suffer some anguish, but it was not substantial. 
To some extent, the Complainant's position was exaggerated by himself 
and his wife. As well, there was absolutely no malice on the part of 
Mr. Low. In fact, he was trying to be kind and helpful, as admitted by the 
Complainant, and he certainly was polite and frank. Finally, it is 
certainly questionable as to whether Mr. O'Brien would ultimately have 
been hired by Hydro in all events if his candidacy had been considered 
objectively and fairly on the merits, and not arbitrarily rejected because 
of his age. Exercising my discretion and considering all the evidence, I 
am firmly of the view that this is a case where damages should not be 
awarded, and I have no doubt in coming to this conclusion. 



ORDER 



For the foregoing reasons, this Board of Inquiry orders the 
fo I lowing: 

I. It is ordered that the Respondent, Ontario Hydro, cease 
to contravene section 4 of the Ontario Human Rights Code , 
and that Ontario Hydro shall henceforth employ persons 
for positions of apprentices on a basis whereby age by 
itself is not held to be an adverse factor in considering 
applicants for employment (except where age by itself 
is a bona fide occupational qualification and requirement 
for any such positions of employment). 



2. It is ordered that the Respondent shall forward to the 
Complainant within ten (10) days of the making of this 
Order, an application form to be an apprentice electrician, 
and the Complainant shall have twenty (20) davs after the 
mailing of such application form to complete it and submit 
it to the Respondent, and if the Respondent receives 
such completed application form within such stipulated 
time period, the Respondent shall thereupon have two senior 
employees of the Corporation (other than Mr. Low and Mr. Medri ) 
interview Mr. T Brien and assess his candidacy for the position, 
ignoring his age, and the results of such interviews 
and assessments on the merits, and recommendations, shall 
be forwarded to Mr. Medri's superior who shall make 
the decision whether or not to offer the Complainant 
a position of apprentice electrician with the Respondent. 
Such decision, together with the reasons therefor, shall 



be communicated in writing to the Complainant and the 
Ontario Human Rights Commission within thirty (30) 
days of receipt by Hydro of the submitted application. 



DATED at Toronto this 22nd day of June, 1981. 



J. 



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Peter A. Cumming 
Board of Inquiry